Judgment of the Court (Fourth Chamber) of 27 November 2008 (reference for a preliminary ruling from the Korkein oikeus — Finland) — Mirja Juuri v Fazer Amica Oy

(Case C-396/07) (1)

(Social policy - Directive 2001/23/EC - Safeguarding of employees' rights - Transfer of undertakings - Article 4(2) - Substantial change in working conditions involved by a transfer - Collective agreement - Termination of the contract of employment by the employee - Termination for which the employer is regarded as responsible - Consequences - Financial compensation for which the employer is liable)

(2009/C 19/11)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicant: Mirja Juuri

Defendant: Fazer Amica Oy

Re:

Preliminary ruling — Korkein oikeus — Interpretation of Article 4(2) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16) — Responsibility of the employer to an employee who has himself terminated his contract of employment after his working conditions have become substantially worse following the transfer of an undertaking which has resulted in a different collective agreement becoming applicable

Operative part of the judgment

Article 4(2) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that, in cases where the termination of a contract of employment or an employment relationship is brought about because the conditions for the applicability of that provision have been met, independently of any failure on the part of the transferee employer to fulfil its obligations under that directive, the Member States are not required to guarantee the employee a right to financial compensation, for which the transferee employer is liable, in accordance with the same conditions as the right upon which an employee can rely where the contract of employment or the employment relationship is unlawfully terminated by his employer. However, the national court is required, in a case within its jurisdiction, to ensure that, at the very least, the transferee employer in such a case bears the consequences that the applicable national law attaches to termination by an employer of the contract of employment or the employment relationship, such as the payment of the salary and other benefits relating, under that law, to the notice period with which an employer must comply.

It is for the referring court to assess the situation at issue in the case before it in the light of the interpretation of Article 3(3) of Directive 2001/23 as meaning that the continued observance of the terms and conditions agreed in a collective agreement which expires on the date of the transfer of the undertaking is not guaranteed after that date.

(1)  OJ C 269, 10.11.2007.